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In re Gonsalves

October 31, 2007

IN THE MATTER OF MICHAEL GONSALVES.


On appeal from a Final Administrative Decision of the Merit System Board, OAL Docket No. CSV-8601-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 11, 2007

Before Judges Cuff and Lihotz.

Appellant Michael Gonsalves was employed as a Custody Senior Corrections Officer for the Juvenile Justice Commission (JJC). A random drug screen detected cannabinoids in appellant's urine sample. Gonsalves was terminated from his position with the JJC. He appeals from a final decision of the Merit System Board (MSB) that found that the action of the JJC was justified. Appellant argues that the MSB improperly rejected the credibility findings of the Administrative Law Judge (ALJ) and erroneously substituted its interpretation of the record. We affirm.

Following service in the U.S. Marines, appellant enrolled in the JJC Satellite Training Academy, graduating first in his class. He commenced his employment for the JJC at the Jamesburg Training School for Boys. He then transferred to the Stabilization and Reintegration Program, commonly referred to as Boot Camp. Gonsalves never contested that he received a copy of the JJC Random Drug Testing Policy. He also acknowledged that he was familiar with random drug testing in his former capacity as a Marine and as a casino security guard.

On May 6, 2002, Gonsalves was notified that he had been selected for drug testing and should report to submit a urine sample before the end of the workday. On that day, Assistant Chief Wimson Crespo met with Gonsalves and instructed him to read and sign the paperwork associated with submission of a urine sample. The paperwork included a medication information form and a donor notification form.

The donor notification form included appellant's name, Social Security number, and a summary of the drug testing policy. Gonsalves was informed that an officer who tests positive for a controlled dangerous substance will be dismissed from employment. Appellant was given the opportunity to supply a second sample for retesting, if necessary, but he declined.

The medication information form required a thumbprint and disclosure of all medication taken by appellant. Gonsalves disclosed that he takes Xanax (an anti-anxiety drug), Ambien (a sleep aid), and Lisinopril (a blood pressure drug). Although the form noted that each drug was taken daily, Gonsalves testified that he took Xanax only on an as-needed basis. Appellant also disclosed that he took various over-the-counter medications, including Advil and ibuprofen, daily.

Prior to providing the urine sample, Gonsalves washed his hands as directed by Crespo. Then, he opened a factory-sealed specimen bottle and wrote in pencil his Social Security number, date, time and Crespo's name on a separate label and placed it inside the specimen bottle. The number assigned to appellant's sample was 050254. Gonsalves and Crespo proceeded to the men's room where appellant voided into the specimen bottle and sealed the bottle with its tamper-proof security lid. Then, Gonsalves and Crespo returned to the drug testing room and both signed a continuity of evidence form. This form included appellant's name, Social Security number, date, time, location, and a notation of the temperature of the specimen. Gonsalves also acknowledged that the specimen collection process complied with the multi-step procedure prescribed by the drug testing policy.

Gonsalves left and Crespo placed the specimen in a cooler with several other specimens collected that day. Crespo transported the specimens to his office in Bordentown. On arrival, Crespo signed the Internal Affairs master log book and placed appellant's urine specimen in a locked refrigerator to which only he and a few other Internal Affairs investigators had the key. The master log sheet entry for May 6, 2002, reveals that the specimen was placed in the secure refrigerator at 3:15 p.m.

Each specimen stored in the locked refrigerator in the Bordentown office is logged into the Internal Affairs log book. Crespo completed the top portion of a specimen submission form and placed the form in the log book. He testified that urine specimens were stored in the refrigerator for a day or two until transported to the laboratory for analysis. On May 8, 2002, Investigator Eric Cloud removed appellant's urine specimen from the locked refrigerator and verified that the identification number and Social Security number listed on the continuity of evidence form matched the information on appellant's urine specimen container and medication information form. Cloud signed the continuity of evidence form and transported appellant's specimen from the locked refrigerator in Bordentown to the laboratory.

Appellant's specimen was analyzed on May 8, 2002. The analysis revealed the presence of 41 nanograms per milliliter of Carboy-9-Delta THC in his urine, more than four times the maximum permitted level of 10 nanograms per milliliter. When a specimen tests positive for a controlled dangerous substance, the sample results and medication form are presented to a medical review officer to determine if the medication used by the tested employee may account for the positive results.

Once notified of his positive test result, appellant's physician wrote to the JJC. The physician contended that the medications used by appellant and his frequent ingestion of poppy seed bagels created a false positive. Dr. Havier, a forensic toxicologist and the Assistant Director of the New Jersey State Toxicology Laboratory, advised the JJC that none of appellant's medications contributed to the positive result. He noted that the "screening procedure relies on the high specificity of a antibody for only the major metabolite of marijuana. The screening result is then confirmed by a completely different analytical procedure called gas chromatography/mass spectrometry (GC/MS). This second technique specifically ...


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